Join us Feb 8, noon, at KCBA's office in Seattle to explore Sexual Harassment Issues in ADR. This memo includes background information useful for the discussion.

To: King County Bar AssociationFrom: Marcella Fleming Reed, JD, SPHR, SHRM-SCPAshley Tam, J.D.Date: February 8, 2018Re: ADR Presentation – Sexual Harassment in the Workplace______________________________________________________________________The following is a list of articles or information pertinent to the King County Bar Association’s ADR presentation and roundtable discussion related to sexual harassment in the workplace:I. How Legal Agreements Can Silence Victims of Workplace Sexual Assault, October 2017, Hiba Hafiz, Lecturer at University of Chicago School of LawArticle URL: https://www.theatlantic.com/business/archive/2017/10/legal-agreements-sexual-assault-ndas/543252/

• Under the National Labor Relations Act, employers are not allowed to prevent workers from talking about sexual harassment or even gender-inequity complaints at work or when they relate to work.

• Title VII of the Civil Rights Act, the federal law that protects employees from sexual harassment and sex discrimination at work, invalidates settlement agreements that prohibit settling employees from filing charges with or assisting the Equal Employment Opportunity Commission (EEOC) in its investigation of any sexual harassment charges.

• While nondisclosure agreements (NDAs) are unenforceable when used to silence workers’ discussion of sexual harassment at work and in legal claims, they can and are enforced to silence employees’ public speech.

• Government agencies, such as the EEOC, would need more resources to investigate and sue employers responsible for both sexual harassment and retaliations against employees for speaking out.

• Legal protections currently do not necessarily protect independent contractors or subcontractors.

II. Nondisclosure Agreements: Sexual Harassment and the Contract of Silence; November 2017; Annie Hill, Assistant Professor in Gender, Women, and Sexuality Studies at the University of MinnesotaArticle URL: http://genderpolicyreport.umn.edu/nondisclosure-agreements-sexual-harassment-and-the-contract-of-silence/

• NDAs can be used pre-emptively and post-harassment to silence victims and threaten them with sanction for contractual breaches.

• According to a 2002 decision by the National Labor Relations Board, Phoenix Transit System and Amalgamated Transit Union, employees have a right to discuss sexual harassment complaints among themselves and to engage in concerted activity, such as union organizing, to protect others.

• Victims speaking out is a necessary form of prevention because it exposes the pattern of abuse, warns others, and encourages people to come forward, including other victims and bystanders.

• Victims don’t speak out because:

o First, victims of harassment may fear that knowledge of a settlement will harm future job prospects by marking them as litigious or troublemakers;Memo to King County Bar Association

o Second, employers and harassers might be less inclined to negotiate or pay a settlement if they cannot obtain an NDA, a situation that could diminish victims’ bargaining power in recovering damages;

o Third, sexual harassment stigmatizes victims and having what a harasser did made public can be embarrassing and harmful to victims.

III. How to End the Silence Around Sexual-Harassment Settlement; January 2018; Stephanie Russell-Kraft, The NationArticle URL: https://www.thenation.com/article/how-to-end-the-silence-around-sexual-harassment-settlements/

• Confidentiality agreements in sexual-harassment and -discrimination claims have become standard practice, particularly in settlements between two parties with a large power disparity, like an employee and employer, a student and a university, or a powerful media mogul and a young actress.

• To address the harms that confidentiality requirements impose, lawmakers in a handful of states, including New York, New Jersey, and Pennsylvania, have floated bills to bar nondisclosure provisions in employment contracts and in settlements relating to claims of discrimination, retaliation, and harassment.

• A recent study by the Economic Policy Institute found that more than half of nonunion private-sector employees in the United States are currently subject to mandatory arbitration in disputes with their employers. Among large employers, the proportion is even higher. Between arbitration and pre-suit settlements, only a small fraction of workplace harassment claims are ever filed in court.

• Litigation may last for years and it’s very public.

• Low-wage workers, immigrant workers, and workers of color, who bear the brunt of workplace sexual assault and harassment, may find it difficult to find an attorney who is willing to take their case on a contingency basis.

• Removing confidentiality restrictions alone won’t create a database of harassment claims that can be searched by reporters or job seekers, and the onus is still on women to bring the problems of workplace sexual harassment to light.

• Sexual harassment as a public risk and safety hazard might also help litigators in the few states with so-called “sunshine in litigation” laws push back against confidentiality provisions in harassment settlements.

IV. How to Shut Down Workplace Sexual Harassment; January 2018; Rebecca Koenig, Staff Writer for U.S. NewsArticle URL: https://money.usnews.com/money/careers/company-culture/articles/how-to-shut-down-workplace-sexual-harassment

• The Congressional Accountability Act, set up by Congress in 1995, was set up in part to deal with charges of sexual harassment, as well as other labor disputes within Congress, and does include some confidentiality provisions.

• According to the statute within the law, as an accuser takes their complaint through the process within the Office of Compliance (OOC), there is strict confidentiality in the counseling process, strict confidentiality in the second step, the mediation stage, and confidentiality is a bit looser in the hearing stage.

• "Taxpayers foot the bill and the harasser goes on with his or her life," Speier said during congressional hearings on the topic in November. "There is zero accountability and zero transparency. I might also add that during that process, the

victim can't even communicate that they are going through an OOC process to their family, to their friends or to anyone in their religious community. So it's really no wonder that staffers do not seek this process at all."

• “The roughly $27,000 settlement revealed by Buzzfeed against Conyers is an average settlement for Congressional cases,” Katz said, even though they are very low compared to the private sector.

• Even outside of a settlement, nondisclosure agreements have helped harassers evade accountability. NDAs are signed when hired.

• Some victims want the details to remain confidential, and forcing disclosure could lead to fewer, smaller settlements.

• Mike Delikat, head of Orrick’s Global Employment Law Practice, said, “Why would an O’Reilly pay that kind of money when the reason he’s paying is to avoid the potential destruction of his career and ability to make money?”

• Restrictions on confidentiality not unprecedented. EEOC can negotiate private settlements when it sues companies for labor violations, but settlements with state and local government must be public.

• If a victim knew her harasser was a repeat offender, she might go to the police, demand that the harasser be terminated, and ask for substantially more money.

o There’s the fear of being retaliated against or ostracized by their employers, potential future employers, and even entire industries;

o There’s concern for how their friends and family might treat them differently, or might themselves suffer from unwanted attention;

o There’s the completely understandable aversion to undergoing a humiliating and demoralizing public trial;

o The cold reality is that defendants come after victims hard, smearing their reputations by casting them in whatever negative light they can, often accusing them of promiscuity, gold-digging, and flat-out lying;

o Private settlements protect victims from all the painful ugliness that comes with litigation in the public eye.

• There’s the matter of financial restitution — which has nothing to do with greed and everything to do with a victim’s ability to continue living without her paycheck, since she’s likely to have been forced out of her job, and to pursue any help she may need as she recovers. Bill O’Reilly allegedly paid $32 million dollars to settle a sexual harassment claim made by a Fox News analyst. Would he have settled at all, not to mention for that amount, without the promise that the story would remain confidential?

• The consequences of breaking an NDA, if the need to speak out overrules the need to honor the contract, is a calculated risk. Breaching such a contract can result in the loss of settlement money and gives the defendant the right to sue — but sometimes, speaking up comes out in the victim’s favor.

• There are some protections already in place for those who would speak out. States like California prohibit the use of confidentiality provisions if the underlying facts could be prosecuted as a felony sexual offense.

• Some states have similar laws that prohibit such agreements if they conceal facts related to a public hazard.

• And in Kalinauskas v. Wong, a 1997 sex discrimination case, the plaintiff was allowed to depose another woman who’d been harassed at the same company and signed a confidentiality agreement. The decision set a precedent used in future federal court decisions that confidential settlement agreements can be discoverable in litigation involving the same employer when similar facts are alleged.

• NDAs prevent the public from knowing about predatory conduct that harms us and stop government officials from being able to perform critical law enforcement duties that are designed to protect us. And by concealing sexual harassment and abuse, we lose the deterrent effect that results when we shine a light on offenders.

• Personal account of woman who signed NDA and later regretted it. Pros and cons.IX. Lawyer: USAG Attempted to Silence Maroney on Nassar Abuse; December 2017; Amanda Turner for International Gymnas MagazineArticle URL:http://www.intlgymnast.com/index.php?option=com_content&view=article&id=4969:lawyer-usag-attempted-to-silence-maroney-on-nassar&catid=2:news&Itemid=53

• Maroney’s attorney, John Manly, cited the California Code of Civil Procedure that does not permit confidentiality clauses in settlements in cases involving acts that may be prosecuted as a felony sex offense.

• The new lawsuit filed by Manly...accuses USA Gymnastics (USAG) of violating the law by including the confidentiality clause as part of the settlement. The statute was amended January 1, 2017, to include potential disciplinary action for any attorney who demands a confidentiality clause in a case related to sexual abuse

of a minor, meaning that Gloria Allred (Maroney’s former attorney) and USAG’s attorneys would not face any sanctions for involvement in the settlement in December 2016.

• Maroney willingly signed the confidentiality agreement with USAG last year, but she was emotionally traumatized at the time.

• More than 130 people have now filed lawsuits related to assaults that team doctor Larry Nassar claimed were legitimate medical treatment.

• It has been alleged that MSU (Michigan State University) ignored repeated complaints against Nassar by his female patients as far back as 1997. The lawsuit alleges that Nassar, who was stripped of his medical license in April 2017, was a "known sexual predator" to MSU officials, who nevertheless allowed and encouraged him to travel nationally and internationally with minors, allegedly because of the prestige he brought to the faculty and athletic department. Personal account of woman who signed NDA and later regretted it. Pros and cons.

X. Microsoft Moves to End Secrecy In Sexual Harassment Claims; December 2017; Nick Wingfield and Jessica Silver-Greenberg, New York TimesArticle URL: https://www.nytimes.com/2017/12/19/technology/microsoft-sexual-harassment-arbitration.html

• Senators are proposing legislation that would make forced arbitration in harassment cases unenforceable under federal law.

• Brad Smith, Microsoft’s president and chief legal officer, said eliminating the arbitration requirement for harassment claims by its own employees represented an immediate step the company could take while the Senate bill was being considered.

• The move is largely symbolic because only a minority of Microsoft workers — numbering in the hundreds in its senior ranks, according to Mr. Smith —have been subject to the requirement.

• Microsoft will still require those employees to take claims unrelated to harassment and gender discrimination to arbitration.

Learn about a unique process that combines qualities of Restorative Circle work and the creation of questions that allow each participant to: recognize their role in the development and progression of their conflict; how to best have their own needs met, and how to meet the needs of others in the group.

·Build social capital and achieve social discipline through participatory learning and decision-making

oUnderstand nine effects of restorative practices, compass of shame, and types of restorative practices and how to apply these processes to such areas as family law and labor & employment law.

oExperience firsthand a sample of how a restorative practice circle works

“Implicit Bias” is having a bias that you don’t know you have and are unaware of its impact on how you interact with people and interpret information. The KCBA ADR Section invites you to a fascinating discussion about Implicit Bias and how it impacts your legal and/or ADR practice. Darcia Tudor and Vivien Sharples will share risk factors and interventions for Implicit Bias.

Darcia Tudor, JD, MHP, CWM, is the managing partner of Tudor & Tudor and Eastside Mediation & Arbitration. Darcia has served as a Guardian ad Litem, Settlement Master, Arbitrator, Mediator, and Child Specialist for King County. In addition to serving as an Adjunct professor at several colleges and a trainer for professional groups on Implicit Bias and a variety of professional topics, Darcia was recognized by the University of Puget Sound as a Distinguished Alumni in Residence. She helped found the Eastside Legal Assistance Program. In addition to her JD degree, Darcia is a certified mediator and has a Master’s Degree in Clinical Psychology. She works with pro se parents in mediating parenting plans, marriage dissolution, mental health and/or abuse issues, and elder care cases. Darcia can be reached at: www.darciatudor.com

Vivien Sharples has served as a professional mediator, trainer, and facilitator. She is a Dispute Resolution Mediator for the City of Seattle’s Alternative Dispute Resolution Program. In addition to serving as an ADR advisor for FEMA and disaster reservists, Vivien has mentored other mediators with the King County Interlocal Conflict Resolution Group (ILCRG), the King County DRC, Sound Options Mediation Group, and the Seattle Executive Board ADR program. Her experience living in several countries gave her a keen interest in cross-cultural communication. Vivien has served on Seattle’s Race & Social Justice Core Team. She has trained over 3,000 people on anti-racism, group facilitation, mediation, nonviolence, and other issues involving conflict resolution. Vivien can be reached at: Vivien.Sharples@seattle.gov

I just came home from two American Bar Association Section of Labor and Employment Law midwinter meeting in Puerta Vallarta, and here are my top ten tips anyone heading to down to the Westin for an ABA LEL meeting.

1. The Westin's pools so very lovely. The kids pool is much quieter and usually has plenty of shaded open space. The other pool has the swim up bar, but waiter service is also available (I like the shrimp quesadilla). There are even three giant pool cushions in the very shallow area. Those fill up first. As you enjoy the pool, remember that the lovely "island" slowly slope in to the pool, and so if you are walking around the pool, watch your footing.

2. I heard a rumor that the Westin's fancy restaurant on the beach has "sexy coffee" which is sounds like the Mayan coffee in the link. My greatest regret from the trip was not trying it.

3. If there is a sunset cruise option for the conference, I recommend it. It was great. If you wind up feeling a little seasickness, remember to watch the horizon, and sit near the front of the boat.

4. Silver and tequila shopping in Old Town/Romantic Zone is a blast. I like to take a taxi to the landmark church in the center of old town, and walk Sounth toward the Romantic Zone, walking through town to hit the slops and walking back along the beach to enjoy the "board walk" feel. My friends and I split a really delicious coffee meringue at one of the tiny storefront bakeries.

5. I'm very jealous of who went to the taco tour with Vallarta Eats. Next time, this is on my must do list

6. Puerta Vallarta's Malacon is the walk way along the beach filled with mostly international tourist during the day and Mexican tourists at night. There are amazing fancy restaurants all over town, which I have heard great thing about. But shrimp fajitas at a place like Bar Oceano had a much more local feel, which was also a fun and more affordable excursion.

7. If you want a shrimp fajita closer to the hotel, the marina's Fajita Banana is also a fun and affordable (sports bar) option.

8. Consider a side trip. I arrived two days early and went south to Xinalani for few days of glamping at a yoga resort. I enjoyed sleeping in the budget friendlier dorm room, under a mosquito curtain with the sound of the waves.. The food was delicious, and the surf lesson was a blast. The resort is not at all accessible those with mobility issues, and has A LOT OF STEPS, and require a ride in a small boat and ATV to get there. But, for the right crowd, it is a super side trip and I especially recommend getting a coco loco or fresh coconut. After drinking the beverages, they will offer to machetes out the meet and added chili spices. It was really delicious .

9. Before you go, enroll in the hotel loyalty program. Even if you never earn a free night, you can qualify for free wifi during your stay.

Join the KCBA ADR Section at our December meeting for an interactive discussion about mediator ethics opinions issued in Washington by the WSBA Committee on Professional Ethics. We will also be exploring select opinions from other states made available through the ABA National Clearinghouse for Mediator Ethics Opinions. The discussion will involve role-plays (no acting necessary!) to stimulate productive conversation about common ethical dilemmas arising in every day practice.

How can conflict resolution practitioners get into the zombie action? PignPotato Games, a group formed out of a game jam for mediators, currently has a Kickstarter campaign for Zombie Fight or Flight, a collaborative card game where players work together to survive. Zombie Fight or Flight is an engaging, fast paced game, with non-gory, just the right bit of scary, zombie art.

Like Bruce Wayne/Batman, it has an alter ego. It is a really fun collaborative game that is easy to learn. It is also an innovative and creative training tool for conflict resolution practitioners who want a new way to encourage cooperation.

We need help- Zombie Flight or Flight is designed to be a innovative and nonconventional tool in a mediator/ conflict resolution professional's toolbox. To make it a really great tool/game, we hired an amazing artist and are printing the decks in large batches to lower the price point. We will use nice large tarot size cards to make it an awesome table top game with quality cards, not like a training exercise printed out on regular paper. We need funding to print the cards, so we are using kickstarter.

We really need help. To make this a real thing to share with the dispute resolution world, we need to make our kickstarter goal. Kickstarter is really competitive right now. If you order Bears vs. Babies, the runaway crowdfunded hit that we are up against and we agree looks awesome, please please support us too.

Lawyers and dispute resolution folks are a tiny segment of the typical crowdfunding market. The typical gamer kickstart funder does not have a vested interest in bringing an innovative conflict resolution tool to market. We need your help getting the word out to mediators, facilitators, ombuds, conflict coaches and teacher, law professors, students, attorneys, the whole world of dispute resolution. We know there are lots of people in the legal world who like"geeky" things like zombies and tabletop game games. We really need help getting the word to them.

Pease help us spread the word Please tell your dispute resolution friends and contacts. Please tell you gamer friends and contacts. Please help us tell anyone who might like this game. (Know someone who would want instructions in French, we have that covered?) We really need help from the legal and dispute resolution world to make our goal.

We are not professional game designers, we are lawyers, mediators and college students trying to figure out how to make this project fly. We think bringing a little zombie fun into the world will help people cooperate more. Dispute resolution is when everyone can win. Getting to the end of the campaign with enough funds will be tough, please considering helping.

On Oct. 20, the King County Bar Association's Section of Dispute Resolution had its annual Mediation Week celebration. During this event, we dug into the concepts of alternative dispute resolution and mediation. We realized that as conflict resolution professionals, we really are in the business of sorting things out. We help attorneys and their clients, or unrepresented parties, have the some of the communication they need to make decisions and to solve problems. Not every issue needs or should have the investment of resources that litigation brings, some problems need early and expert assistance to sort out the matter in an efficient and informal way. Mediators bring those skills to the table, and there are many tables that could use this sort of help.

To help parties and attorneys connect with mediators, KCBA is launching has an ADR panel as part of its Lawyer Referral Program. This pilot project will have the ability to assist the legal community in King County, and we are very excited to announce the program's launch.

Did you grow up playing only competitive games and internalizing the message that individualized competition is culturally neutral and teaches critical life skills? This session will introduce participants to lesser known models of play that depend upon team-based competition (against the game) and group problem-solving, and that offer the potential to test cultural norms of competition while allowing opportunities to practice skills that will support both interest-based negotiation and mediation practices. We’ll also discuss the ways that these games can be used in real mediations and negotiations.

Tonight was a huge night for dispute resolution in Seattle. The King County Bar Association's lawyer referral program is launching an ADR panel pilot program. The application form is ready, the requirement are set, and the pilot project is about to begin. Litigation is not the only way that lawyers help their clients solve problems, and this program will facilitate high quality and cost effective problem solving and dispute resolution.

After attending a Liberating Structures training last most, I brought an idea back to work this week and introduced the idea to my fellow training team members. We used to have a portion that of our meetings devoted to talking about issues we we are experiencing in our case load. In the last few years we moved away from this agenda item, to keep the meetings shorter. The troika structure seemed like a good idea, as we could talked get ideas about challenges we are facing in our cases in a structured and liberating way.

And so after briefest of intros (5 minutes) we jumped into groups of three and I started my stop watch. One person told the other two about a challenge they were having (1 minute) then turned their back as the other two, acting as consultants discussed ideas that they might suggest (5) minutes, followed by the first person turning back around and thanking the two consulted and being able to quickly reflect on the consultant's conversation (1 minute). Then the same this happens two more time. This meant that all three participants would have one time in the advisee seat and two times as consultant.

In all it was a lot in 20 minutes and a challenge for me to work the stopwatch and participate. Also as it was a first attempt, not all participants had a training challenge ready.

I think the structure added a good energy to our meeting on a topic than often runs stale. We are not sure how to apply this in a mediation, but was nice as an internal meeting tool. The real test will be if the group is interested in trying in at future meetings.

The Washington Mediation Association Fall Conference is just around the corner, on Tuesday, October 25th. For the past several years, mediators from a variety of government programs (as well as solo mediators) have had a significant presence at the conference, and hope that many of you can make it this year.

The WMA has another great program this year that is centered around the theme of Next Steps in Conflict Engagement. In the morning, six speakers are lined up to discuss extending mediation and incorporating other conflict resolution methods in the practice of mediation. For those that are Washington State Bar members, the morning sessions have been approved for 2.5 CLE credits. In the afternoon, there are UnConference sessions, where participants propose topics of learning and discussion, and then attend discussions on the topics of most use and interest to them. This mixed format has worked very well for the WMA Fall Conference in the past, and it should be a great experience for all of the participants.

Working on materials this weekend for the upcoming Negotiation Skills for the Zombie Apocalypse, (Oct. 31, Vancouver- Space still available). Am working on an exercise set on a farm so I took my camera over the to the Anderson Island's Johnson Farm to capture some of the atmosphere. It was a break in the storm, so I was the only one there. I tried to capture some post-aplocalypitic loneliness.

Celebrating ADR Where We Are

& Where We are Going

King County Bar Association

1200 5th Ave, Suite 700

Thursday, October 20th 5 – 7 p.m

All ADR clients and ADR practitioners are invited to help the ADR section of King County Bar Association celebrate ABA Mediation Week with a program, animated discussion, and reception. (1.0 CLE pending)

AGENDA

5:00 - 5:10 Celebrating ADR around the world. What does ADR look like locally?

The two are perfect for a Halloween CLE in Vancouver BC! Come join us as we explore the zombie metaphor to develop practical skills. It will be fun, AND it will improve your BRAINS! http://www.cle.bc.ca/1342

Online dispute resolution feels like Uber for mediations. For the first few years, I refused to try Uber, Lift, Airbnb or anything like that. I considered them in the context the civil rights history. How desegregation of public accommodations after WW2 was first related to common law's idea that safe food and lodging should be available to all travelers. How will we keep travel open to all in a "sharing economy" ? Won't this lead to more unequal access, as rich white men will have more choices, because they are "safer" consumers and were not socialized to worry about sexual assault as they jump into strangers' cars or stay in strangers' homes?

But in Saturday night in Denver, I used a Lyft. And in August, Uber. And Airbnb is becoming a normal part of my travels. The world is changing, and if I don't adapt, I will be a dinosaur. So instead of worrying about Online Dispute Resolution, I have decided to try to study it. To learn how to use it. To explore its possibilities. To not let myself be run over by its Uberness.

This week is Creighton University's Cyberweek. I'm trying "attend" or at least watch the "tape delay." It's free. It's the future, and it is time to pay attention to what is coming down the road.

Most people equate games with competition, and this event challenges that assumption. It will be similar to an event that Sharon and I organized for the American Bar Association's Section for Dispute Resolution conference, that was held in Seattle in April 2015.

The event may be light on lecture, and more about having fun and playing the games together.

Today was a Seahawks game. They had already lost three games this season. To inspire the fan base at my home, I went shopping for a dog jersey. As I shopped, I listened to Casey Gerald's Purpose is the New Bottom Line episode of Creative Mornings podcast. It was the inspiration I needed to move this website online. I've been thinking a lot lately about the future of the legal profession. Open records + Big data + Online Dispute Resolution + ? = I don't know what, but I believe that big waves of disruption are coming.

Our legal system can no longer treat traditional courtroom litigation as the default method of dispute resolution. Our economy, environment, and families need faster faster resolutions. We need innovation in our judicial and administrative tribunals. This could also lead to greater access to justice. As current systems change, and we need new ways to chart our futures. Negotiation and mediation are often the most appropriate method of resolving disputes. These skills will become even more critical to lawyers and other problem solvers.

In my day job, I worked as a full-time neutral. I mediate, arbitrate, adjudicate, facilitate, and train parties who are in the midst of conflicts. I've been doing this work almost twelve years. The best part about becoming older is that havinga "box of tools" that I've developed through experience. I'm interesting in sharing my tools with you, the next generation of lawyers and problem solvers. And, working with you to build new tools.